FEDS PLAN 25,000 ON-SITE H-1B INSPECTIONS

Computerworld reported this week that U.S. immigration officials are taking H-1B enforcement from the desk to the field with a plan to conduct 25,000 on-site inspections of companies hiring foreign workers over this fiscal year. Also, this move marks a nearly five-fold increase in inspections over last fiscal year, when the agency conducted 5,191 site visits under a new site inspection program.
We all know that USCIS hired contractors and started this enforcement verification, but now many clients receive site visits. They appear to be random, even public schools and such organizations are receiving these site visits. This 25,000 inspection benchmark means that approximately 1 in every 3 H-1B petitions will receive a site visit, a significant number. How many violations have been or will be discovered by this remains to be seen.

USCIS UPDATES H-1B CAP COUNT FOR FY2010 -- AT 55,600

USCIS just issued an update of the H-1B cap count for fiscal year 2010 (present year) -- as of November 13, 2009, approximately 55,600 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for foreign nationals with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap, so all the remaining filings will now count toward the general H-1B cap of 65,000. It's now down to the last 10,000 H-1Bs, or a bit less, so hurry up if you intend to file.

H-1B CAP UPDATE

USCIS HQ indicated that the jump in the H-1B count from the last update on September 18, 2009 (46,000) to the current number (53,800) is due more to the reaching of the Masters cap and the placing of the remaining Masters cap cases into the regular cap pool then any significant increase in H-1B filings over the last month and half. However, companies should be advised to file H-1B cap cases as quickly as possible because there are less than 10,000 visas left, and there is no way to know when they will actually run out. To find out more information, go to: http://www.visalaw.com/atlanta.html

PREPARING FOR AN H-1B SITE VISIT

A recent study done by the Office of the Inspector General (OIG) and USCIS, found that nearly one in five H-1B petitions were affected by either fraud or technical violations, of the H-1B program. This, in addition to collecting the $500 anti-fraud fee for H petitions which funds enforcement activities, led USCIS to greater enforcement of the H-1B rules and regulations on employers. In addition to more restrictive adjudication standards, the USCIS is conducting random Site visits as part of the expansion of its Administrative Site Visit and Verification Program to determine if H-1B employers and employees are complying with the terms of the H-1B and the LCA (Labor Condition Application).
Private contractors were hired as investigators and they are being sent out to conduct site visits to H-1B employers to verify if the H-1B employee is working at the employer site and performing the work as outlined in the H-1B petition. These investigators want to confirm the identity of the employer who petitioned for the visa and the visa beneficiary and to verify that both are in compliance with the terms and conditions of the visa. In other words, they are checking to make sure the company is legitimately doing business as it says in the petition and to see if the person is doing the job that was described in the petition, working the same hours, and earning the salary that was certified on the LCA.
The objective of these unannounced site visits is to detect fraud and abuses of the visa program. According to USCIS, the offenses range from technical violations to outright fraud, with the most common violation being the non-payment of a prevailing wage to the H-1B beneficiary. Critics of this program have said that these minimally trained contractors do not have the sufficient knowledge to conduct such audits.
If your company is subject to a site audit, you will be contacted by an investigator. The officer will identify himself or herself as a USCIS Site Inspector and will present you with official government issued identification. The Inspector will ask to speak to the HR person or the person that signed the I-129. The Inspector will also ask to speak to the foreign national that is the beneficiary of the relevant petition assuming they are working at the same location. If they are at a different location it is likely the Inspector will visit that site as well.
The Inspector will ask both parties questions about the position held by the H-1B worker including the title of the job and the duties, the salary being paid, the hours being worked, and the actual location of the work. The companies should have public access files available as well as payroll records. Contact your attorney in case of a site visit to ensure it is completed smoothly, or if you do not have one, contact us at: http://www.visalaw.com/atlanta.html

SOME GOOD NEWS H-1B CONSULTANTS AT THIRD PARTY WORK SITES

After months of being hammered by the USCIS Vermont Service Center (VSC), H-1B consulting companies have some good news. Consulting companies that place H-1B workers at third party work sites were subject to massive Requests for Additional Evidence (RFEs), some of them without legal authority or ultra vires, and visa denials.
Many of those RFEs required contracts for the work performed as well as other evidence, which many times do not list the duties and no direct connection existed between the consulting company and the end client. Many times these contracts are confidential or are contracts between a mid-level vendor and the consulting company. Other times the end client does not wish to get involved and write an official letter to USCIS.
While the USCIS still does not accept only a statement from the petitioning consulting company regarding the duties to be performed by the H-1B Beneficiary, the VSC recently confirmed that a letter from the end client is acceptable as proof of the specific assignment. This may be submitted in lieu of the work contract.
In summary, proof from the end client will still be required by VSC, although the type of such proof has been eased somewhat. IT consulting companies should be aware of the need for proof from the end client in advance of filing the H-1B petition with VSC.

$1.4 MILLION BACK WAGES AWARDED TO VSC CONTRACT EMPLOYEES

The U.S. Department of Labor has recovered more than $1.4 million in back wages for 237 employees of Computer Sciences Corp., a contractor for the U.S. Department of Homeland Security's U.S. Citizenship and Immigration Services Vermont Service Center at various locations in St. Albans and Essex Junction, Vt. According to a press release issued by the Department of Labor in Boston, these contract workers at the USCIS Vermont Service Center were not paid the proper prevailing wage for the type of work they were actually performing.
Read the full press release here: http://www.dol.gov/opa/media/press/esa/esa20091243.htm
Embarrassing news for USCIS, to say the least, especially VSC who has been extremely tough on employer-contractors in the last year or so.

USCIS UPDATES H-1B CAP COUNT -- AT 46,000

USCIS has just informed in a press release that as of September 18, 2009, approximately 46,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS continues to accept both cap-subject petitions and advanced degree petitions, and the number continues to trickle up slightly every few weeks. Notably the economic conditions and the increased audits of H-1B petitions have been the most significant causes for the minimal demand for H-1B visas this year.